Digital rights are *all* human rights, not just civil and political

By Jonathan McCully, 27th February 2019

The UN Special Rapporteur on extreme poverty and human rights consults with the field

Last week, following our strategy meeting, DFF hosted the UN Special Rapporteur on extreme poverty and human rights, Professor Philip Alston, for a one-day consultation in preparation for his upcoming thematic report on the rise of the “digital welfare state” and its implications for the human rights of poor and vulnerable individuals. The consultation brought together 30 digital rights organisations from across Europe, who shared many examples of new technologies being deployed in the provision of various public services. Common themes emerged, from the increased use of risk indication scoring in identifying welfare fraud, to the mandating of welfare recipients to register for bio-metric identification cards, and the sharing of datasets between different public services and government departments.

At DFF, we subscribe to the mantra that “digital rights are human rights” and we define “digital rights” broadly as human rights applicable in the digital sphere. This consultation highlighted the true breadth of human rights issues that are engaged by the development, deployment, application and regulation of new technologies in numerous aspects of our lives. While many conversations on digital rights tend to centre around civil and political rights –– particularly the rights to freedom of expression and to privacy –– this consultation brought into sharp focus the impact new technologies can have on socio-economic rights such as the right to education, the right to housing, the right to health and, particularly relevant for this consultation, the right to social security.

The UN Special Mandates have already started delving into issues around automated decision-making in a broad spectrum of human rights contexts. In August last year, the UN Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression produced a detailed report on the influence of artificial intelligence on the global information environment. This follows on from thematic reports on the human rights implications of “killer robots” and “care robots” by the UN Special Rapporteur on extrajudicial, summary or arbitrary executions and the UN Special Rapporteur on the enjoyment of all human rights by older persons, respectively.

The UN Special Rapporteur on extreme poverty and human rights has similarly placed the examination of automated decision-making and its impact on human rights at the core of his work. This can already be seen from his reports following his country visits to the United States and United Kingdom. In December 2017, following his visit to the United States, he reported on the datafication of the homeless population through systems designed to match homeless people with homeless services (i.e. coordinated entry systems) and the increased use of risk-assessment tools in pre-trial release and custody decisions. More recently, following his visit to the United Kingdom, he criticised the increased automation of various aspects of the benefits system and the “gradual disappearance of the postwar British welfare state behind a webpage and an algorithm.” In these contexts, he observed that the poor are often the testing ground for the government’s introduction of new technologies.

The next report will build upon this important work, and we hope that the regional consultation held last week will provide useful input in this regard. Our strategy meeting presented a great opportunity to bring together great digital rights minds who could provide the Special Rapporteur with an overview of the use of digital technologies in welfare systems across Europe and their impact. It was evident from the discussions that the digital welfare state raises serious human rights concerns; not only when it comes to the right to social security, but the right to privacy and data protection, the right to freedom of information, and the right to an effective remedy are also engaged. As one participant observed, the digital welfare state seems to present welfare applicants with a trade-off: give up some of your civil and political rights in order to exercise some of your socio-economic rights.

It was clear from the room that participants were already exploring potential litigation strategies to push back against the digital welfare state, and we look forward to supporting them in this effort.

Scaling digital rights work in Europe and further strengthening the field

By Nani Jansen Reventlow, 27th February 2019

Last week, experts, activists and litigators from 48 organisations working on digital rights across Europe gathered in Berlin for DFF’s second annual strategy meeting. The gathering built on the important work done in 2018 – set in motion by a meeting organised by Vera Franz of OSF in 2016 – by increasing not only the geographical, but also the thematic diversity amongst participants. Organisations from outside North-West Europe were better represented than previously, and both more specialised organisations – working on issues ranging from children’s right to prisoners’ rights – as well as more “traditional” human rights NGOs took part.

Participants seized the rare opportunity of having such a breadth and high level of expertise in one room to jointly think about how we can strengthen digital rights at field level and also do deep work on the crucial issues that are on the digital rights agenda today.

The meeting, held at Studio Chérie in Neukölln under the energetic facilitation of Gunner from Aspiration, kicked off with a session in which we took stock of the field by surveying key developments over the past year. Great work was highlighted in smaller group conversations, including on the first defamation case for hyperlinking at the European Court of Human Rights, police use of facial recognition technology, the Telegram case in Russia, and experiences with filing the first GDPR complaints

Having gotten a good sense of what everyone was working on, we moved straight into the question of how we can sustain and scale digital rights efforts. How can we tell better stories about our work to different audiences and how do we run strong campaigns? What are the synergies we can create between advocacy and litigation? And how can we make sure our work is funded in an ethical way?

These conversations also took a deep dive into how we can build a fierce and resilient digital rights field, looking both at the role technologists play in the fight for digital rights and the need to decolonise the digital rights field, which currently lacks diversity in many respects.

In addition to the field level questions, a lot of deep thematic work was conducted in the course of the two days. AI, the GDPR and especially AdTech, net neutrality and copyright were clearly in focus.

The strategy meeting was followed by an additional day during with the UN Special Rapporteur on extreme poverty and human rights held a consultation for his forthcoming thematic report on the digital welfare state and its implications for the human rights of poor and vulnerable individuals. Close to 30 organisations provided input on issues related to, amongst others, the use of digital technologies in welfare systems across Europe, efforts to address any negative impact, as well as the obstacles to doing this effectively. 

The meeting left us feeling even more grateful for working with such an impressive network of organisations and individuals. While the challenges at times may seem endless, seeing this level of dedication and commitment to the greater good is inspiring. We look forward to continue learning from all of them and providing our support where we can.

Over the coming weeks, we will publish some further reflections on the outcomes of the meeting, including from the participants themselves, and address some of the plans we have to follow up on the conversations that took place.

Taking stock of 2018, looking forward to what lies ahead

By Nani Jansen Reventlow, 18th February 2019

As we are preparing to engage in conversation with old and new friends at our annual strategy meeting this week, it is a good time to take stock of the developments we have seen since our first meeting in 2018 and look ahead at what is still to come.

One of the most prominent developments in 2018 was of course the entry into force of the GDPR, which led to some early wins as well as promising initiatives pushing for greater protection of our personal data. We have seen the first claims being brought against major online patforms over the collection of data subject consent, initiatives being developed to take on the AdTech ecosystem, and the first GDPR fines being imposed by data protection authorities against corporations such as Google. However, much of the potential of the Regulation remains under-explored, not least in the context of the much-discussed realm of AI, in particular looking at the GDPR’s restrictions on decisions based solely on automated processing,such as profiling. We look forward to supporting various initiatives to enforce the rights provided under the GDPR through cases that can set precendent that will help clarify its scope of protection. 

Looking at the important issue of surveillance, the ECtHR judgment in the case of Big Brother Watch and Others v. United Kingdom (also known as the “10 NGOs” case) resulted in a partial, but not entirely comprehensive, win. The Court found that aspects of the UK bulk surveillance regime, including the authorities’ access to data held by communications service providers, was incompatible with Articles 8 and 10 of the European Convention on Human Rights, which protect the rights to privacy and freedom of expression. Nevertheless, the parties pursuing the case are hoping that the European Court’s Grand Chamber — which recently accepted the case for review — will reconsider other aspects of the case, such as the finding that, in principle, bulk surveillance was compatible with the Convention and that the intelligence sharing regime did not violate Articles 8 and 10.

The European Court of Human Rights also handed down, in Magyar Jeti v. Hungary, its first judgment on liability for hyperlinking in defamation cases. This is a strong precedent that will help towards safeguarding the free flow of information online by protecting website publishers from absolute liability in contexts where they merely hyperlink to defamatory content on another site.

Looking ahead at 2019, we expect a great deal of activity around AI, algorithmic decision-making, machine learning and any of the other headers under which the “next frontier” of digital rights is currently being discussed. We should be prepared for some of the battles to be fought in what perhaps aren’t conventionally considered to be digital rights fields, such as labour law, health care, and the like. The Houston Teachers case in the US, which set an important precedent around the due process concerns raised by the use of algorithms in the employment context, is an important example in that regard. One of the issues we hope to explore this week during the strategy meeting is therefore how we can create better connections between the “digital” rights field, human rights field, and others who will likely share the frontlines with us in fighting for our rights in the digital sphere.

At DFF, we are looking forward to facilitating further dialogue across the full human rights spectrum when it comes to the digital sphere; supporting diversification (or decolonisation — more on that is to follow) and general strengthening of the field by, among other things, developing  strategic litigation toolkits, exploring greater connectivity between the field and academia, and of course supporting amazing cases and pre-litigation research.

As always, your views and input are invaluable to us, so even if you are not able to join us in Berlin this week, please get in touch to share your ideas, comments and suggestions with us. We look forward to hearing from you as we continue our support to those working to advance digital rights in Europe.